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Is a conditional caution the way forward for dealing with and rehabilitating those accused of viewing indecent images of children?
BlogCriminal Law Blog

In a recent interview with the Times, Simon Bailey, the National Police Chiefs’ Council lead on child protection, highlighted the increasing numbers of cases of alleged child sexual abuse being reported to the police, including cases of indecent images of children (“IIOC”) being viewed online. In a frank admission he stressed that the police are finding themselves overwhelmed by this work and have reached “saturation point”.

These concerns are certainly supported by the statistics. According to the Times, the number of reports of child abuse being made to the police has risen by 80% in three years. Police receive an average of 112 complaints a day and in 2015 there were 70,000 cases of child sexual abuse investigated. The police arrest 400 people each month on suspicion of viewing IIOC.

Bailey’s proposal to deal with this problem is to divert low-risk offenders who view IIOC away from the criminal justice system by making use of alternative forms of disposal at the police station. He describes these particular individuals as being “…very, very low-risk offenders, who, based upon good risk assessments, pose little if any actual threat of contact abuse”.

Expanding upon his proposals on the Today programme, Bailey suggested that offenders would still be arrested and become registered sex offenders, but they could be dealt with at the police station by way of a conditional caution. Just like a simple caution, a conditional caution is an alternative to being charged. It forms part of an individual’s criminal record (where it will remain until the person reaches the age of 100 and will be available to the police and courts in any future proceedings), but does not result in a case being taken to court or any subsequent conviction.

A conditional caution becomes “spent” three months after it is administered. This means that, for the purposes of applying for most jobs, the offence does not need to be disclosed to an employer. However, many professional roles and jobs which involve working with children or vulnerable adults are exempt from this rule and so different principles apply. For these positions, if the person received the caution when they were at least 18 years old, it will have to be disclosed if it was given less than six years ago. In addition, if it was imposed for an offence which is relevant to the issue of safeguarding (viewing IIOC is such an offence), the caution will always have to be disclosed, regardless of how old it is.

The key difference between a simple caution and a conditional caution is that the latter carries with it one or more requirements aimed at rehabilitation, reparation or punishment, with which the offender must comply. If these conditions are not complied with, the offender is at risk of being charged with the original offence. Bailey’s proposed conditional cautions for low-risk offenders who view IIOC would require the individuals concerned to attend a rehabilitation course, like that currently run by the Lucy Faithfull Foundation.

It is unlikely that many will be persuaded that a conditional caution could ever be an appropriate way to respond to the viewing of IIOC, even in respect of those assessed as low-risk. Indeed, several groups were quick to voice their concerns following Bailey’s comments, including the Home Affairs Select Committee and the National Association for People Abused in Childhood.

However, there are many benefits which would result from these proposals. Diverting offenders away from the criminal justice system would result in significant cost savings for the police, CPS, courts, prisons and probation service, especially as the prospect of less severe consequences might encourage more people to accept their guilt at the police station (a requirement for a caution to be administered) who previously might have been more willing to fight the case at court.

This scheme would also make the public safer, sooner. Criminal proceedings can take a very long time to conclude, especially in the crown court. Under Bailey’s proposals, however, because cautions are typically administered on the same day as the individual is arrested, offenders would begin to receive much-need rehabilitative assistance at an earlier stage than if this was to follow from a sentence imposed at court after conviction, which in turn would offer protection to the public much sooner. Finally, it is important to note that people who receive these conditional cautions will not cease to be subject to any official supervision by the authorities once the caution has been administered and the rehabilitation course completed.

They will remain subject to notification requirements (what is meant when somebody is said to be a “registered sex offender”) for a much longer period. These requirements include, among others, having to notify the police of any changes of home address or addresses at which the person regularly stays, and are aimed at protecting the public. Furthermore, as noted above, conditional cautions for IIOC offences will always have to be disclosed to particular employers, most importantly when the job involves working with children.

For those who remain concerned that these proposals would not provide adequate protection for the public or would not be sufficiently punitive, an additional feature which could be introduced would be to extend the time it takes for an IIOC offence to become spent when a conditional caution is administered. This could perhaps be a period of six months or a year instead of three months.

Although it is important for the criminal justice system to recognise that viewing IIOC is a serious offence and to respond appropriately, what is equally as important is ensuring that offenders are rehabilitated so that the public are better protected. In these times of financial difficulty and struggling public services, if these objectives can all be achieved just as effectively but at a significantly lower cost, then alternative proposals like Bailey’s should be seriously considered.

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